Andrew Ward obtains settlement in a Vnuk type personal injury claim

January 3, 2017

Andrew Ward of Exchange Chambers has obtained a substantial settlement in a legally complex personal injury claim concerning the scope of compulsory insurance under the Road Traffic Act 1988.

The claimant (“BM”) was a part-time motor dealer trading from premises at a farm in Wales. In February 2013, a friend left his 4×4 at the premises and asked BM to sell it for him. D1 attended the premises and asked to test-drive the 4×4. Whilst D1 was driving the vehicle through gates leading from a track into a yard at the claimant’s premises, a trailer attached to the vehicle ran over BM’s legs.

D2 insurer provided motor trades business insurance to BM. However, D2 denied that its policy responded to BM’s claim or that it was a Section 151 Road Traffic Act 1988 insurer on the grounds that: (a) the test-drive would only have started after the trailer had been detached and use of the vehicle when the accident happened was social, domestic and pleasure use falling outside the use clause of its motor trades policy; and (b) the accident happened on a private farm track / yard rather than on a “road or other public place” within the meaning of Section 145(3)(a) of the Road Traffic Act 1988.

D3 insured the owner of the vehicle and its policy insured “[a]ny person driving with the policyholder’s permission”. D3 denied that D1 was driving with the owner’s permission. It also relied upon a policy exclusion relating to the use of the vehicle for motor trades purposes. Further, it denied that the accident happened on a “road or other public place” within the meaning of the 1988 Act.

In relation to the use of the vehicle on a “road or other public place” the Claimant pleaded that the provisions of the 1988 Act should be construed consistently with the decision of the ECJ in Vnuk –v- Zavarovalnica Triglav dd (C-162/13 ECJ; J.P.I.L. C225 and that the vehicle was being used in a manner consistent with its normal function such as to render D2 and / D3 liable.

D4 was the Motor Insurers’ Bureau. It was joined into the proceedings because D2 and D3 denied being the relevant Section 151, RTA 1988, insurer. The MIB denied any contingent liability to satisfy any unsatisfied judgment obtained against D1 on the ground that the accident did not occur on a “road or other public place” such that its obligations under the 1988 Act and Uninsured Drivers’ Agreement 1999 were not engaged.

In December 2016, D2 settled BM’s claim for substantial damages and agreed to pay the costs of BM and of the other defendants.

Andrew added that: “This settlement marks a good compromise of a legally complex claim. This case illustrates how the ‘use’ clauses in various motor insurance policies and the phrase ‘road or other public place’ in the 1988 Act continue to give rise to problems of construction and application.”

If the Court had determined at trial that the accident did not occur on a ‘road or other public place’ then the claimant would have brought a Francovich claim for damages against the United Kingdom government on the basis that its defective implementation of the relevant EU Motor Directives shall have caused the claim to fail. Whilst the settlement renders consideration of this issue academic, it is a point that may well be tested in other cases.

Andrew was instructed by Gareth Kinvig of Jones Kinvig Lawyers in Birkenhead.